[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3387 Introduced in Senate (IS)]

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119th CONGRESS
  1st Session
                                S. 3387

   To prohibit certain uses of automated decision systems to inform 
             individualized prices, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             December 8 (legislative day, December 4), 2025

  Mr. Gallego introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
   To prohibit certain uses of automated decision systems to inform 
             individualized prices, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``One Fair Price Act of 2025''.

SEC. 2. PROHIBITION ON SURVEILLANCE-BASED PRICE SETTING.

    (a) Surveillance-Based Price Setting.--
            (1) In general.--Subject to paragraphs (2) and (3), it 
        shall be unlawful for a person to offer or charge different 
        prices to different consumers for the same, or a substantially 
        similar, product or service using, informed by, or based on, in 
        whole or in part, surveillance data.
            (2) Safe harbor.--
                    (A) In general.--The following shall not be 
                considered surveillance-based price setting for 
                purposes of paragraph (1) if the conditions of 
                subparagraph (B) are met:
                            (i) A difference in price that is based 
                        solely on reasonable costs associated with 
                        providing the product or service to different 
                        consumers.
                            (ii) A bona fide discount that is offered 
                        to any member of a broadly defined group, 
                        including teachers, active duty personnel, 
                        veterans, senior citizens, or students.
                            (iii) A bona fide discount that is offered 
                        to any consumer who affirmatively and knowingly 
                        enrolls in a loyalty program.
                    (B) Conditions for exception.--The conditions 
                described in this subparagraph are the following:
                            (i) Any basis for a difference in 
                        reasonable costs associated with providing a 
                        product or service to different consumers is 
                        disclosed to the consumer prior to purchase.
                            (ii) Any eligibility condition or criteria 
                        for receiving or earning a bona fide discount 
                        is clearly and conspicuously disclosed.
                            (iii) Any bona fide discount is offered 
                        uniformly to any consumer who meets the 
                        disclosed eligibility conditions or criteria.
                            (iv) Any surveillance data used solely to 
                        offer or administer a bona fide discount is not 
                        used for any other purpose, including 
                        profiling, targeted advertising, or 
                        individualized price setting.
                            (v) Any loyalty program that allows a user 
                        to accrue and exchange points, credits, or any 
                        similar nonmonetary system of value for a 
                        product or service does not charge a different 
                        price for those points, credits, or similar 
                        nonmonetary system of value to different 
                        consumers for the same or substantially similar 
                        product or service.
            (3) Inapplicability to insurance or credit products.--The 
        prohibition under paragraph (1) shall not apply to the business 
        of insurance or any credit product.
    (b) Enforcement by the Commission.--
            (1) Unfair or deceptive acts or practices; unfair methods 
        of competition.--A violation of subsection (a) or a regulation 
        promulgated under such subsection shall be treated as a 
        violation of a rule defining an unfair or deceptive act or 
        practice under section 18(a)(1)(B) of the Federal Trade 
        Commission Act (15 U.S.C. 57a(a)(1)(B)) and as a violation of 
        section 5(a) of the Federal Trade Commission Act (15 U.S.C. 
        45(a)) regarding unfair methods of competition.
            (2) Powers of the commission.--
                    (A) In general.--Except as provided in subparagraph 
                (C), the Commission shall enforce subsection (a) and 
                any regulation promulgated under such subsection in the 
                same manner, by the same means, and with the same 
                jurisdiction, powers, and duties as though all 
                applicable terms and provisions of the Federal Trade 
                Commission Act (15 U.S.C. 41 et seq.) were incorporated 
                into and made a part of this Act.
                    (B) Privileges and immunities.--Except as provided 
                in subparagraph (C), any person who violates such 
                subsection or a regulation promulgated under such 
                subsection shall be subject to the penalties and 
                entitled to the privileges and immunities provided in 
                the Federal Trade Commission Act.
                    (C) Common carriers, nonprofit organizations, and 
                air carriers.--Notwithstanding section 4, 5(a)(2), or 6 
                of the Federal Trade Commission Act (15 U.S.C. 44, 
                45(a)(2), 46) or any jurisdictional limitation of the 
                Commission, the Commission shall also enforce 
                subsection (a) or a regulation promulgated under 
                subsection (a), in the same manner provided in 
                subparagraphs (A) and (B), with respect to--
                            (i) common carriers subject to the 
                        Communications Act of 1934 (47 U.S.C. 151 et 
                        seq.) and all Acts amendatory thereof and 
                        supplementary thereto;
                            (ii) organizations not organized to carry 
                        on business for their own profit or that of 
                        their members; and
                            (iii) air carriers and foreign air carriers 
                        subject to the Federal Aviation Act of 1958.
                    (D) Rulemaking.--
                            (i) In general.--The Commission may 
                        promulgate in accordance with section 553 of 
                        title 5, United States Code, such rules as may 
                        be necessary to carry out this section, 
                        including guidance regarding how to comply with 
                        subsection (a).
                            (ii) Small business concerns.--The 
                        Commission shall consider rules necessary to 
                        carry out this Act as having a significant 
                        economic impact on a substantial number of 
                        small entities for purposes of chapter 6 of 
                        title 5, United States Code (commonly referred 
                        to as the ``Regulatory Flexibility Act'').
                    (E) Authority preserved.--Nothing in this Act may 
                be construed to limit the authority of the Commission 
                under any other provision of law.
    (c) Actions by States.--
            (1) In general.--In any case in which the attorney general 
        of a State, or an official or agency of a State, has reason to 
        believe that an interest of the residents of such State has 
        been or is threatened or adversely affected by the engagement 
        of any person in an act or practice in violation of subsection 
        (a) or a regulation promulgated under such subsection, the 
        attorney general of the State, may as parens patriae, bring a 
        civil action on behalf of the residents of the State in an 
        appropriate State court or an appropriate district court of the 
        United States to--
                    (A) enjoin such act or practice;
                    (B) enforce compliance with such subsection or such 
                regulation;
                    (C) obtain, for each violation, the greater of--
                            (i) the actual monetary damages incurred 
                        from the violation; or
                            (ii) $3,000; or
                    (D) obtain, for each violation, any other 
                restitution, penalties, and other legal or equitable 
                relief as the court may deem appropriate.
            (2) Rule of construction.--For purposes of bringing a civil 
        action under this subsection, nothing in this Act shall be 
        construed to prevent an attorney general, official, or agency 
        of a State from exercising the powers conferred on the attorney 
        general, official, or agency by the laws of such State to 
        conduct investigations, administer oaths and affirmations, or 
        compel the attendance of witnesses or the production of 
        documentary and other evidence.
    (d) Private Right of Action.--
            (1) In general.--An individual who has been injured by a 
        person in violation of subsection (a) or a regulation 
        promulgated under such subsection may bring a civil action 
        against such person in an appropriate State court or an 
        appropriate district court of the United States to--
                    (A) enjoin the violation;
                    (B) obtain, for each violation, the greater of--
                            (i) the actual monetary damages incurred 
                        from the violation; or
                            (ii) $3,000; or
                    (C) obtain, for each violation, any other 
                restitution, penalties, and other legal or equitable 
                relief as the court may deem appropriate.
            (2) Willful violations.--If the court finds that the 
        defendant acted willfully in committing a violation described 
        in paragraph (1), the court may, in its discretion, increase 
        the amount of the award to an amount equal to not more than 3 
        times the amount available under paragraph (1)(B).
            (3) Prima facie case; rebuttal.--
                    (A) Prima facie case.--In any proceeding commenced 
                pursuant to paragraph (1), the defendant shall be 
                presumed to be in violation of subsection (a) if the 
                plaintiff can demonstrate that--
                            (i) two or more individuals were offered 
                        different prices by the defendant for the same, 
                        or a substantially similar, product or service 
                        during the same, or a substantially similar, 
                        period of time; or
                            (ii) one individual was offered different 
                        prices by the defendant for the same, or a 
                        substantially similar, product or service 
                        during the same, or a substantially similar, 
                        period of time while using different means of 
                        viewing the price.
                    (B) Burden of rebutting prima facie case.--The 
                defendant may rebut the presumption described in 
                subparagraph (A) by demonstrating that the alleged 
                difference in price was--
                            (i) not informed, in whole or in part, by 
                        surveillance data; or
                            (ii) fully explained by the safe harbors 
                        described in subsection (a)(2).
            (4) Costs and attorney's fees.--The court shall award to a 
        prevailing plaintiff in an action under this subsection the 
        litigation costs of such action and reasonable attorney's fees, 
        as determined by the court.
            (5) Limitation.--An action may be commenced under this 
        subsection not later than 5 years after the date on which the 
        individual first discovered or had a reasonable opportunity to 
        discover the violation.
            (6) Nonexclusive remedy.--Bringing a civil action under 
        this subsection shall be in addition to any other remedy 
        available to the individual bringing such civil action.
            (7) Invalidity of pre-dispute arbitration and joint action 
        waivers.--Notwithstanding chapter 1 of title 9, United States 
        Code (commonly known as the ``Federal Arbitration Act''), or 
        any other provision of law, a pre-dispute arbitration agreement 
        or pre-dispute joint action waiver between a person in 
        violation of subsection (a) and an individual is not valid or 
        enforceable for purposes of the individual bringing a civil 
        action against such person under this subsection.
    (e) Joint Study and Report.--
            (1) Study.--Not later than 1 year after the date of 
        enactment of this section, the Office of Advocacy of the Small 
        Business Administration (in this subsection referred to as the 
        ``Office of Advocacy''), in consultation with the Commission, 
        shall conduct a joint study to evaluate the impact of this Act 
        on--
                    (A) small business concerns; and
                    (B) promoting competition between large and small 
                business enterprises.
            (2) Report.--Not later than 180 days after the Office of 
        Advocacy completes the study under paragraph (1), the 
        Commission and the Office of Advocacy shall submit to Congress 
        a report on such study, including any relevant findings and 
        recommendations resulting from such study.
    (f) Definitions.--In this section:
            (1) Bona fide discount.--The term ``bona fide discount'' 
        means an offered price that is lower than the genuine price at 
        which a product or service is widely offered to the public on a 
        regular basis for a reasonably substantial period of time and 
        not for the purpose of establishing a fictitious price to 
        enable the subsequent offer of a reduction.
            (2) Business of insurance; credit.--The terms ``business of 
        insurance'' and ``credit'' have the meaning given such terms in 
        section 1002 of the Consumer Financial Protection Act of 2010 
        (12 U.S.C. 5481).
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Genetic information.--The term ``genetic information'' 
        has the meaning given such term in section 2791(d) of the 
        Public Health Service Act (42 U.S.C. 300gg-91(d)).
            (5) Personal information.--The term ``personal 
        information'' means any quality, feature, attribute, or trait 
        of an individual, including any immutable characteristic (such 
        as race and eye color), mutable characteristic (such as 
        address, weight, citizenship, family, or parenthood status), 
        genetic information, and any other information that could 
        reasonably be linked, directly or indirectly, with a particular 
        individual or household.
            (6) Pre-dispute arbitration agreement.--The term ``pre-
        dispute arbitration agreement'' means any agreement to 
        arbitrate a dispute that has not arisen at the time of making 
        the agreement.
            (7) Pre-dispute joint action waiver.--The term ``pre-
        dispute joint action waiver'' means an agreement, including as 
        part of a pre-dispute arbitration agreement, that would 
        prohibit, or waive the right of, one of the parties to the 
        agreement to participate in a joint, class, or collective 
        action in a judicial, arbitral, administrative, or other forum, 
        concerning a dispute that has not arisen at the time of making 
        the agreement.
            (8) Price.--The term ``price'' means the amount charged or 
        offered to a consumer in relation to a transaction, including 
        any related cost and fee and any other material term of the 
        transaction that has direct bearing on the amount paid by the 
        consumer or the value of the product or service offered or 
        provided to the consumer.
            (9) Small business concern.--The term ``small business 
        concern''--
                    (A) has the meaning given such term in section 3 of 
                the Small Business Act (15 U.S.C. 632); and
                    (B) shall not include a small business concern 
                involved in developing, training, or selling a product 
                or service for the primary purpose of aiding a business 
                to determine a price.
            (10) Surveillance data.--The term ``surveillance data''--
                    (A) means data that is related to the personal 
                information, behavior, or biometrics of an individual; 
                and
                    (B) includes data gathered, purchased, or otherwise 
                acquired.

SEC. 3. APPLICATION OF PROHIBITION ON SURVEILLANCE-BASED PRICE SETTING 
              TO AIR CARRIERS AND TICKET AGENTS.

    (a) In General.--Section 41712 of title 49, United States Code, is 
amended by adding at the end the following:
    ``(d) Prohibition on Surveillance-Based Price Setting.--It shall be 
an unfair or deceptive practice under subsection (a) for an air 
carrier, foreign air carrier, or ticket agent to engage in 
surveillance-based price setting, as described in section 2(a) of the 
One Fair Price Act of 2025.''.
    (b) No Preemption of Consumer Protection Claims.--Section 
41713(b)(4) of title 49, United States Code, is amended by adding at 
the end the following:
                    ``(D) No preemption of surveillance-based price 
                setting claims.--Nothing in subparagraphs (A) through 
                (C) may be construed--
                            ``(i) to preempt, displace, or supplant any 
                        action for civil damages or injunctive relief 
                        based on a violation of section 2(a) of the One 
                        Fair Price Act of 2025; or
                            ``(ii) to restrict the authority of any 
                        government entity, including an attorney 
                        general of a State, from bringing a legal claim 
                        on behalf of the citizens of the State with 
                        respect to any such violation.''.
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